P L D 2007 PESHAWAR 179

JAN PERVEZ

v/s

HAJI FAZAL HUSSAIN & ORS

Constitution of Pakistan (1973) Art.12-

True, that the legislature has unfettered powers to make laws with retrospective effect which include substantive law and law of procedure, however, Article 12 sub-Article (1) of the Constitution have imposed clear restrictions on the powers of the legislature to the effect that it cannot make law to punish acts or omissions of the past which by then were neither declared offences by law nor any punishment was provided therefore. The only exception created is under sub-Article (2) which cover the offence of high treason. Similarly, the same Article prohibits giving retrospective effect to any new enactment which enhances the punishment for the offence from the one which was provided for the same offence under the law prevailing at the time when the offence was committed.

The established proposition on record is that the parties are locked in civil litigation and a complaint under section 145, Cr. P.C. was also filed before the Illaqa magistrate. In the present complaint filed under section 5 of the Act XI of 2005, in (para-12) it has been squarely mentioned that the present petitioner/accused being a desparate person is bent upon to take possession of the land forcibly, the conclusion an inescapable one thus, would be that on 27-10-2005 when the complaint was drafted and was then filed in the trial Court, the act complained of has not yet taken place and if at all it had taken place, that must be earlier to the date of commencement of the new law because civil suit on the subject was already pending before the Civil Judge concerned. The respondents-complaints could seek remedy from that Court by amending the plaint and may also apply for appointment of local commission for demaracation/measurement of the land to ascertain the actual position as to whether the land which the respondents claim to be their ownership with possession has been encroached upon by the petitioner or not and on this preliminary issue, keeping in view the provision of Order XVI of the C.P.C. the entire case can be disposed of by the Civil Court if so approached in the manner highlighted above.

In the present case, in view of the established facts on record, the proceedings taken, the complaint entertained and the jurisdiction exercised by the learned Sessions Judge in view of the above legal position, is corum non judice thus, are liable to be set at naught. The respondents/complainants, if so advised, may get speedy remedy from the civil Court in light of the observations recorded above.

Accordingly, this petition is allowed, the impugned order of the trial Court is set aside and the complaint filed by the respondents-complainants is dismissed. [p. 183, 184 & 185] B, C & E